WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Grundfos A/S v. Lulu Gay and Sons Case No. D2009-0529 1. The Parties
The Complainant is Grundfos A/S of Bjerringbro, Denmark, represented by Delacour Dania Law Firm of Copenhagen, Denmark.
The Respondent is Lulu Gay and Sons of Fot'ata Island, Vavau, Tonga. 2. The Domain Name and Registrar
The disputed domain name is and the Registrar is Naming Associate, Inc. 3. Procedural History
The Complaint was originally filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 22, 2009. The registrant of the disputed domain name was identified in the Complaint originally filed as Li Gaoxin of Shanghai, China. On April 23, 2009 the Center transmitted by e-mail to Naming Associate Inc. a request for registrar verification in connection with the disputed domain name. On April 24, 2009, A, on behalf of Naming Associate Inc. transmitted by email to the Center its verification response identifying that it is in fact the Respondent that is listed as the registrant of the contested domain name and accordingly provided the appropriate contact details for the administrative, billing and technical contact. The Complainant filed the amendment to the Complaint with the Center on May 5, 2009. The Center verified that the Complaint with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 8, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was May 28, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on May 29, 2009.
The Center appointed Charters Macdonald-Brown as the sole panelist in this matter on June 3, 2009. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
The language of the proceedings is English. 4. Factual Background
The Complainant is a part of the Grundfos Group which was established in 1945. Together with its affiliates, it is concerned with the manufacture of high technology pumps and pump systems. This information was submitted by the Complainant and was not disputed by the Respondent.
The Complainant owns trade mark registrations for the GRUNDFOS trade mark and has submitted documentary evidence of its ownership of registered New Zealand trade mark number 78160 with a filing date of March 29, 1965.
The contested domain name was first registered on May 1, 2008. The registration and use of the mark GRUNDFOS pre-dates the date of first registration of the contested domain name. 5. Parties' Contentions A. Complainant Identical or Confusingly Similar
The Complainant submits that the contested domain name is confusingly similar to its trade mark as it contains the trade mark in its entirety.
The Complainant submits that the only difference between the contested domain name and the GRUNDFOS trade mark is the addition of the letter “e”. The Complainant submits that this variation does not avoid either linguistic or phonetic similarities between the GRUNDFOS trade mark and the disputed domain name and therefore does not avoid the likelihood of confusion with the GRUNDFOS trade mark. Rights or Legitimate Interests
The Complainant submits that the Respondent's motives for registering the contested domain name are twofold - to profit from the sale of the contested domain name; and to benefit from the reputation of its GRUNDFOS trade mark by creating a likelihood of confusion for commercial gain and profit by generating revenues from sponsored link advertising.
The Complainant therefore submits that the Respondent does not have any right or interest in the disputed domain name. The Domain Name was Registered and has Been Used in Bad Faith
The Complainant submits that at the time the Respondent acquired the contested domain name, the Respondent no doubt had knowledge of its GRUNDFOS mark.
The Complainant submits that the Respondent is intentionally attempting to attract consumers to its website by creating a likelihood of confusion between the GRUNDFOS mark and the Respondent's website for the purpose of making profits from the sale of sponsored link advertising.
The Complainant contends that the Respondent is intentionally misleading consumers and confusing them that the websites to which the contested domain name is linked are associated with or recommended by the Complainant and is generating unjustified revenues for “click-through” to these websites by consumers. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
For the Complainant to prevail it must establish each of the following elements of paragraph 4(a) of the Policy:
(i) The disputed domain name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights;
(ii) The Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) The disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Complainant has established that it is the registered proprietor of at least one registered trade mark for the word GRUNDFOS.
The Respondent's domain name contains the whole of the Complainant's mark and differs only in the addition of the letter “e”.
As noted in Kijiji International Ltd. v. Fookin Ventures,WIPO Case No. D2006-0840, “it is widely recognized that the simple addition of one letter, aiming at reaching such internet users misspelling the name of a certain domain name, is a type of conduct referred to as ‘ typo squatting' in it creates a virtually identical and/or confusingly similar mark to the targeted trademark(s)”.
The Panel thus finds that the Respondent's domain name is confusingly similar to the Complainant's marks for the purposes of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
In light of the record, the Complainant has established a prima facie case that the Respondent does not have a right or legitimate interest in the disputed domain name. The Panel notes that:
(1) the Complainant is the proprietor of at least one trade mark for the word GRUNDFOS; and
(2) the disputed domain name was first registered after the priority date of the Complainant's registered marks.
The Respondent has failed to make any submissions to the contrary, and accordingly, and also taking into consideration the use of the disputed domain name as explained below, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name for the purposes of paragraph 4(a)(ii) of the Policy. B. Registered and Used in Bad Faith
The evidence supplied by the Complainant shows that it had rights in the GRUNDFOS trade mark over 40 years before the first registration of the contested domain name. The Panel finds persuasive the Complainant's submission that the Respondent must have had knowledge of the Complainant's rights in the mark when it acquired the disputed domain name.
The disputed domain name directs to a search engine composed of sponsored links from which the Respondent may be generating revenue from “click-through” links and may thus be benefitting from the good reputation of the Complainant's mark.
The L'Oréal, Biotherm, Lancôme Parfums et Beauté & Cie v. Unasi, Inc, WIPO Case No. D2005-0623, indicated that “such exploitation of the reputation of trademarks to obtain click-through commissions from the diversion of Internet users is a common example of use in bad faith”.
The Panel is therefore satisfied that there is evidence that by using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation or endorsement of the Respondent's website or location of a product or service on that website or location.
For these reasons, the Panel finds that the disputed domain name was registered and is being used in bad faith for the purposes of paragraph 4(a)(iii). 7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name be transferred to the Complainant.
Charters Macdonald-Brown
Sole Panelist
Dated: June 17, 2009
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